Sexual Harassment in The Workplace: Can I Get Compensation?
Public Liability
20 October 2016
Key Takeaways
Workplace harassment may entitle you to workers compensation benefits for psychological injury in NSW. Psychological injury from sexual harassment in the workplace is recognized as compensable under workers compensation.
• Psychological injury from sexual harassment in the workplace is recognized as compensable under workers compensation
• Employers have statutory duties to prevent workplace harassment and respond promptly to complaints
• Claims include weekly compensation payments and medical expense coverage for mental health treatment
• Harassment based on sex gender or sexual orientation violates anti-discrimination laws and may trigger legal action
Sexual harassment in the workplace is on the rise in Australia.
A recent survey of female Lawyers in the NSW Legal Profession found that more than 70% had reported being sexually harassed with many saying that had been subjected to unwelcome touching, objectification and repeated advances in the workplace or at social events. The survey was conducted by the Woman’s Lawyers Association of NSW and forms part of its submission to the Australian Human Rights Commissions Enquiry into sexual harassment in the workplace.
79% of all Australian’s had been sexually harassed at some point in their lives.
What is Sexual Harassment?
Section 28A (1) of the Sex Discrimination Act (CTH) 1984 (SDA) defines sexual harassment behaviour as:
(a) a person who makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or
(b) engages in other unwelcome conduct of a sexual nature in relation to the person harassed;
In circumstances in which a reasonable person would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated.
Sexual Harassment in the workplace
Section 28B of the SDA makes it unlawful for an employer to sexually harass an employee or an employee to sexually harass a fellow employee.
Sexual harassment in employment by either fellow employees or the boss is considered to be unlawful discrimination.
Section 106 of the SDA imposes vicarious liability on employers for sexual harassment by one employee towards another. The employer is liable if they fail to take all reasonable steps to prevent the employee form doing the sexual harassment.
This means the employer could be held responsible for any remedy the employee may seek as a result of the sexual harassment by another employee.
Similar provisions are found in the Anti-Discrimination Act (NSW) 1977.
If you have sustained an injury either physical or psychological you can make a claim for workers compensation benefits under the NSW Workers Compensation Act 1987.
How to report sexual harassment in the workplace
A sexual harassment claim needs to be reported to the human resources department or a manager at work. You should keep any emails or any other documents relating to the assault/harassment and record as much information as you can about any verbal comments or other actions being taken to sexually harass you.
Your employer should take your complaints seriously and remove you from the presence of the person who is sexually harassing you and investigate the allegations and do their best to stop the sexual harassment.
Unfortunately, once a complaint has been made, employers often do nothing or often do very little to prevent further sexual harassment from occurring.
If the person who is sexually harassing you is the boss and there is no one to report the conduct to, you can make a complaint to the Australian Human Rights Commission. You need to make the complaint within 12 months.
How to claim compensation for sexual harassment in the workplace
To claim monetary compensation for sexual harassment, a complaint of sexual harassment in the workplace must be made to the Australian Human Rights Commission (AHRC) within 12 months of the acts occurring.
The AHRC has the power to investigate and conciliate any such complaints and decide as to whether the sexual harassment was unlawful and also arrange for the parties to attend mediation to see if agreement can be reached.
If no agreement can be reached, then proceedings may be commenced seeking monetary compensation in the Federal Court. This must occur within 60 days of the decision by the AHRC.
Section 46PO of the AHRC Act allows the Federal Court to award damages for unlawful discrimination which includes sexual harassment. The section reads as follows: –
“if the court concerned is satisfied that there has been unlawful discrimination by any respondent, the court may make such orders (including a declaration of rights) as it thinks fit, including any of the following orders or any order to a similar effect…..
(d)an order requiring a respondent to pay to applicant damage by way of compensation for any loss or damage suffered because of the conduct of the respondent.”
Recent cases that involve sexual harassment within the workplace
There have been two recent cases decided by the Federal Court, one (Richardson v Oracle Corporation Pty Limited) in which the court awarded the person who was sexually harassed $100,000.00 for the value of loss of enjoyment of life and the mental illness or distress caused by the conduct as well as $30,000.00 in loss of income.
Recently in the case of Katherine Hill v Owen Hughes t/as Beasley & Hughes Lawyers, the court awarded $170,000.00 to a female lawyer who had been sexually harassed by her boss. $120,000.00 was awarded for damages suffered because of the harassing conduct and $50,000.00 was awarded for aggravated damages. Aggravated damages are essentially awarded for the failure of the employer to stop or prevent the sexual harassment from occurring.
Summary
These two recent cases make it clear that the Federal Court of Australia will award substantial damages of compensation to anyone sexually harassed in the course of their employment should the employer fail to take all reasonable steps to prevent the sexual harassment from continuing once it is reported. If it is the owner of the business that is sexually harassing, you then the employer has clearly failed to take any steps to stop the harassment and will be found liable to pay compensation. It is the employer who pays the compensation.
If you would like to discuss any potential claim you may have please contact our office at (02) 8329 9500 or complete a free case assessment here.
Disclaimer
The information contained on this article is of a general nature only and is not intended to be legal advice. The law may have changed since the information was published. There is no intention to create a lawyer-client relationship and you should always seek legal advice about your own personal circumstances.
Disclaimer
The information contained on this article is of a general nature only and is not intended to be legal advice. The law may have changed since the information was published. There is no intention to create a lawyer-client relationship and you should always seek legal advice about your own personal circumstances.
You might also be
interested in
Worker's Compensation
29 April 2026
2min read
The Impact of Workplace Bullying and Harassment and How to Address It
What is Workplace Bullying and Harassment? Workplace bullying refers to repeated, unreasonable actions or behaviours by one or more persons towards
Medical Negligence
29 April 2026
3 min read
Women’s Pain and Birth Trauma: Highlighting the Gender Pain Gap
The Gender Pain Gap and its Impact on Birth Outcomes Research shows that women experience pain differently to men, but their complaints of pain are often
Have you suffered a
serious injury
Allowing seriously injured people to secure the compensation they deserve so they can return to enjoying life.
Unsure? Give us a call
What Our Clients
Are Saying
Featured Testimonial
I cannot speak highly enough of my experience with this workers Compensation team. When I first reached out, I was completely overwhelmed and unsure about the process. I hit rock bottom - unable to return to work, struggling emotionally, and feeling like I had no direction. From the very beginning, the solicitors were nothing short of amazing. They were patient, understanding and incredibly supportive at a time when I needed it most. They took the time to explain every step in a way I could understand, never making me feel rushed or alone. Their professionalism was matched only by their compassion and that combination made all the difference. Throughout the entire journey, I felt heard, respected and genuinely cared for. They fought for me when I didn’t have the strength to fight for myself and thanks to their dedication, I was able to get the outcome I needed to rebuild my life. If you’re unsure, scared or feeling lost like I was, I can confidently say you will be in the best hands with this team. They helped me through one of the hardest chapters of my life, and I am truly grateful. I can’t thank or recommend Garling & Co Lawyers enough.
Matthew Garling and his team have provided incredible support and guidance throughout my MVA damages claim this year, and I can’t thank them enough for making this journey feel like such a breeze. When I initially engaged Garling & co, I had no understanding of what was ahead. I was anxious and unsure about the process, while also navigating the physical challenges of my injuries. With assurance that my matter was being handled with high level of expertise, professionalism and integrity, I was able to focus on recovery instead. Throughout the process, Matthew and Allison have been honest, straightforward and efficient in all communication; being a supportive buffer in all dealings with the insurer, and consistently committed to a successful outcome. The outcome was excellent, and it is with huge relief and great thanks that I can put this matter behind me. I would highly recommend the services of Garling and co for any injury claims of a similar nature, and I’m forever grateful to Matthew and his team.
A big thank you to Matthew for his expertise, dedication, and genuine care in handling my matter. The outcome exceeded my expectations, and I am truly grateful for the excellent work of his entire team. Outstanding results - highly recommended.